DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

  ex-SR, USN
Docket No. ND03-00312

Applicant’s Request

The application for discharge review was received on 20021211.  The Applicant requests that the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Dear Sir’s:

I am R_ D. L_; I come before this honorable board with perfect intentions and the utmost of respectability. 
It is my plan, To assure all of those whom are concerned, that My only interest herein, Is to plead to those of you whom are in Position to do so, Too please hear my cry.

I can do know more then to be honest in this procedure while Throwing myself upon the mercy of this, Honorable Board.

My pleading request is for an “Up Grade” in my discharge.  In January of 2001,1 went (AWOL) And I will be eternally sorry For that Cowardly, act as long as I shall live. My soul purpose for leaving (A—School), Was to marry the lady of My life, Whom I loved very dearly.

Before my orders came in, I called the Base, and I told them that I was infect (AWOL) and I had planned to come back after I got married. And by know means, Did I want to be discharged from the Navy, Under any or all circumstances. I simply wanted to get married before my orders came in, So that I could take my wife with me so that we could be together throughout my enlistment.

I love being in the Navy, Just as I loved my wife. I had Know intentions of separating the two, However I will have to admit that because of my bad decisions and choices, What I tried too avoid happening, Finally did happen.

Sir, It is my sincere intentions to be Up Graded in my request So that upon my release from my incarceration, I can become Eligible to re-inlist.  It was my plans all along to make a career of my enlistment. I love this country, Just as I also love the Navy. However I did find myself in a position that was way beyond my control. While my soul purpose was only to be married, In the Process, I eventually dug a much deeper hold for myself.

My wife and I were both arrested, In a very unfortunate incident while stooping by a Cousin’s house, For a short visitation. We found ourselves caught in the middle of an on-going drug investigation. The police raided the house, we both was arrested. My wife and I were in a situation of which we had known knowledge Have, and were caught completely off guard.

There were know funds for legal representation, So I had to do Then just I am having to do now (Throw wife & Myself) On the mercy Of the courts. In the process, I had to enter a plea of guilty In order to allow my wife to go free. The Forty (40) months Sentence that I received, Took me out of the realm of possibility to Stay in the Navy, Because it was explained to me that I would Have to receive know more then Six (6) months to be accepted back Into the Navy. I was not giving any other choice; therefore I had to do what I did for my wife, Because she (At That Time) had a Newborn baby boy. , The sacrifice was for their well being NY mine The Navy could not be called upon to represent my wife, Whom were Not actually my wife at that time. So because there was know Marriage, I would be the only one being represented by the Navy. In closing, To all and whomever it will concern. I want you all to know that I will never regret anything in life more then the Regrets that I have in leaving the Navy. I will always love this Country, and I would gladly lay down my life for her.

It is my hope, dream & deepest desire that after this is all behind me, I will some how be allowed inlist to serve this great Country of our. So if it is found in your hearts to allow me to be waivered, I would love to reenlist, and once again serve my Beautiful Country.”

VERY SINCERELY:
YOURS,
R_ D_ L_ (Applicant)

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	000731 - 000810	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  000811		Date of Discharge:  010406

Length of Service (years, months, days):

	Active:    00  05  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  42

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  84

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

010108:	UA from SSC GLAKES IL 0600, 010108.

010402:	Surrendered to Military Authority at TPU GLAKES, IL at 2240, 010402.  Returned to Military Control at TPU GLAKES at 2240, 010402.  Retained onboard for disciplinary action/disposition.

010403:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He waived his right to consult with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him.  Specifically, he admitted to violating UCMJ, Article: 86.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing

010404:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010406 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Sailor.  In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veteran’s benefits based upon his current enlistment.  He also understood he might encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 86:  unauthorized absence.  Additionally, only members discharged within the first 180 days of their first enlistment can be given an uncharacterized or entry level separation.  Since the Applicant served in excess of 5 years, he cannot be given an uncharacterized or entry level separation.  Furthermore, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities as requested in the issue.  However, neither a less than fully honorable discharge nor an unfavorable “RE” code is a bar to reenlistment.  A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  Relief denied. 

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial].

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023